Monday

18th Feb 2019

Opinion

Whistleblowers could be enforcers of rule of law in Europe

  • The commission is actually defending individuals who are at the forefront of rule of law and transparency by disclosing information in the public interest (Photo: adil113/Flickr)

The proposal by the European Commission for a directive protecting whistleblowers could be a true turning point in how corruption and abuse of law is fought in the EU.

At a time in which liberal values are deeply challenged in Europe by governments with no regard for the rule of law, this directive offers a powerful yet subtle new approach to oversee the respect of EU fundamental values.

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  • Cases like Antonie Deltour in the LuxLeaks revealed that even in EU countries otherwise considered to have solid protection for whistle-blowers, loopholes exist that lead to prosecution (Photo: Mélanie Poulain)

Whistleblowers have unique insider's access to information generally hidden for the general public.

Yet while they expose fraud and abuse that otherwise remains veiled under permanent secrecy, they typically face retaliation by their employers and have no incentive to speak out.

Cases like Antonie Deltour in the LuxLeaks revealed that even in EU countries otherwise considered to have solid protection for whistleblowers, such as France, Hungary, the UK and Luxembourg, loopholes exist that lead to prosecution.

After hesitating on whether it enjoyed competence to act, the EU eventually proposed to replace a patchwork of rules across the bloc and broaden their scope via a EU-wide protection laying down common minimum standards for the protection of persons reporting on unlawful activities across policy areas, ranging from nuclear safety to the protection of the environment, from food safety to data protection (yes, expect more Cambridge-Analytica-style scandals).

Through this proposal, the commission is actually defending individuals who are at the forefront of rule of law and transparency by disclosing information in the public interest.

This directive can therefore also be seen as a means of feeding national and EU enforcement systems as well as journalists with information leading to effective detection, investigation and prosecution in breaches of Union rules.

In particular, by requiring all member states of the Union to protect whistleblowers, regardless whether they work in the private or public sector, this directive offers an alternative mechanism to fight autocratic inclined governments, such Hungary and Poland, and enforce the rule of law across Europe.

Hungary and Poland?

If the proposed directive will be backed by the Council and the European Parliament, it can be a real change-maker for the rule of law deficit in many EU countries, particularly Hungary and Poland.

By contrast to external bureaucratic checks, as those foreseen under article seven 7 of the Treaty of the EU, whistleblower protection is a bottom-up oversight mechanism.

Although the directive requires for individuals to first report internally - which can be a real challenge in some national capitals - it also offers many clear possibilities for external reporting, i.e. outside the institution, making it easier for truth to be spoken to power.

This could lead Hungarian citizens who are directly affected by the increasing corruption level in the Fidesz-led government to speak out and report what they witness.

The whistleblower directive is also an unprecedented success story of citizen-led legislative initiative.

Driven by civil society organisations, academics (we had the opportunity to draft the first text of the directive), citizens and the European parliament, this directive is a remarkable example of how agenda setting in Brussels can be more democratic and closer to the citizens.

It is only the concerted push for the past three years led by the parliament together with civil society and experts' advice on the EU's powers to legislate on the matter that results in today proposal by the commission offering a wide scope of protection both in the private and public sector for certain EU policies.

If adopted, the EU whistleblowers directive EU will join the arsenal of tools that can be mobilised to force national institutions themselves to take action, ranging from requests for access to documents, petitions to the European Parliament, or complaints to the EU Ombudsman.

It is this kind of transnational mobilisation that Europe needs more than ever to counter the many attacks to the rule of law.

Vigjilenca Abazi is assistant professor of EU law at Maastricht University & Alberto Alemanno is Jean Monnet Professor of EU Law, HEC Paris and author of Lobbying for Change: Find Your Voice to Create a Better Society. They contributed to the drafting of the first draft whistleblower directive for the EU Greens at the European Parliament in 2016

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